Aug 25, 2014

Wisconsin's historic ruling for marriage equity will be heard Tuesday, August 26, by a three-Judge panel of the Court of Appeals of the Seventh Circuit.

The federal case in Wisconsin is consolidated with a case from Indiana, Walker v. Wolf(Milwaukee Journal-Sentinel document) and Baskin v. Zoellerrespectively, both of which have been fast-tracked as the federal court system has issued numerous rulings in favor of liberty and equality.

"The panel that sped up the case consists of Judges Richard Posner, Ann
Claire Williams and David Hamilton. Posner and Williams were appointed
by President Ronald Reagan, and Hamilton was appointed by President Bill
Clinton," note Patrick Marley and Dana Ferguson (Milwaukee Journal-Sentinel).

Posner is a public intellectual and is widely regarded as one of the top legal minds in the country, having moved sharply away from rightwing jurisprudence in recent years since being appointed to the bench in 1981.

The Republican Party, including Scott Walker facing a tough reelection, is moving away politically from openly opposing marriage equality as an fast-moving public opinion is acclaiming liberty and marriage equity, adopting the due process and equal protection of marriage equity advocates.

Cases to be heard on appeal after federal district courts ruled states’ marriage bans unconstitutional

WASHINGTON – On Tuesday, August 26th, the U.S. Court of Appeals for the Seventh Circuit will hear arguments in court cases from Indiana and Wisconsin in which federal district courts ruled against the states’ bans on marriage for same-sex couples. Baskin v. Bogan of Indiana– which was consolidated with Lee v. Pence and Midori Fujii v. State of Indiana – and Wisconsin's Walker v. Wolf are slated to go before a three-judge panel of the Seventh Circuit at 9:30am CT. In total there have been twenty federal court rulings against bans on marriage equality across the country – seventeen federal district court rulings and three circuit court rulings upholding district court rulings – all since the U.S. Supreme Court struck down key provisions of the federal Defense of Marriage Act (DOMA) in United States v. Windsor in June of last year.

“The patchwork of marriage laws across the country that exists today is simply unsustainable,” said Human Rights Campaign (HRC) Legal Director Sarah Warbelow. “Every day that passes with these discriminatory marriage bans still on the books is another day that injustice prevails. Committed and loving gay and lesbian couples in Indiana and Wisconsin deserve to have their relationships recognized as valid under the law, just like everyone else.”

THE CASES

Indiana – On June 25th, 2014, U.S. District Court Judge Richard L. Young ruled that Indiana’s ban on marriage equality is unconstitutional. The ruling covered three separate cases: Baskin vs. Bogan, Fujii v. State of Indiana, and Lee v. Pence. Judge Young did not stay the ruling, and couples immediately began marrying. Previously the court granted emergency relief for one of the plaintiff couples in the Baskin case, ordering the state to recognize their marriage as one of the women is battling terminal cancer. Indiana Attorney General Greg Zoeller appealed Judge Young’s ruling, as well as the court order compelling the state to recognize the plaintiff couple’s marriage, and requested a stay of the Seventh Circuit Court of Appeals. On June 27th, 2014, the Seventh Circuit granted Attorney General Zoeller’s stay request, and also consolidated the three marriage cases for the appeal. Three days later, the Seventh Circuit issued an order forcing the state to continue recognizing the marriage of the individual plaintiff couple battling illness. The plaintiffs in Baskin v. Bogan are represented by attorneys from Lambda Legal and the law firm of Kirkland and Ellis LLP. The Fujii plaintiffs are represented by the ACLU and LeMieux Law Office. And the plaintiffs’ attorneys in Lee v. Pence are with Austin & Jones, P.C.; Fillenwarth Dennerline Groth & Towe, LLP; Sniderman Nguyen, LLP; and Sweeney Law Group, LLC.

Wisconsin – On June 6, 2014, U.S. District Judge Barbara Crabb ruled against Wisconsin’s constitutional amendment banning marriage equality. In Wolf v. Walker, the American Civil Liberties Union, ACLU of Wisconsin and the law firm of Mayer Brown LLP sued the state on behalf of four couples seeking to marry, arguing that the Wisconsin’s ban on marriage equality violates the couples’ due process and equal protection rights under the 14th Amendment to the U.S. Constitution. Judge Crabb did not stay her ruling, but also left unclear whether the state should stop enforcing the ban. Couples began marrying in the state and Wisconsin officials requested a stay from the Seventh Circuit Court of Appeals, but were denied, with the appeals court saying Judge Crabb had still not issued final judgment. Ultimately, Judge Crabb stayed her ruling, citing the Supreme Court of the United States’ decision to halt marriages in Utah following a similar federal court ruling striking down that state’s marriage equality ban.

CURRENT LANDSCAPE

There are over 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico. Aside from the two cases before the Seventh Circuit, cases from nine other states are currently pending before four federal appeals courts. The Tenth and Fourth Circuits both recently upheld rulings striking down state bans on marriage equality – Kitchen v. Herbert of Utah and Bishop v. Smith of Oklahoma in the Tenth Circuit, and Bostic v. Shaefer of Virginia in the Fourth Circuit. In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in federal or state court. Since the Supreme Court’s historic marriage rulings last year, there have been 20 consecutive federal court decisions that bans on marriage equality are unconstitutional. These rulings have come from judges appointed by both Democratic and Republican presidents.

The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. However, Justice Ruth Bader Ginsburg recently told reporters the Court will not “duck” a marriage case. "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."

Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase from just 5 years ago – with other polls showing support at even higher margins. And support for same-sex marriage rights continues to grow in virtually every demographic group. According to ABC News / Washington Post, 77 percent of adults under age 30 favor marriage equality. 40 percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent, according to the New York Times. These numbers continue to grow, with no indication that support will slow down.

Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman. For more information on this and other marriage equality cases across the country, visit www.americansformarriageequality.org
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The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

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"You do not preach and encourage hatred for the Negro and hope to restrict it to that field. It is an old, old story. It is one repeated over and over again in history. When the wolves of hate are loosed on one people, then no one is safe."— Ralph McGillAtlanta Constitution, Oct. 13, 1958A Church, A School

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Michael Leon

Michael Leon is a writer living in Madison, Wisconsin. His reporting has been recognized by the Wisconsin Newspaper Association. Leon's writing has appeared nationally in The Progressive, The Advocate, In These Times, CounterPunch and The Champion—the journal of the National Association of Criminal Defense Lawyers, and locally in the Isthmus, the Capital Times and the Fitchburg Star. Leon works as a writer, editor, veterans' advocate, and public relations consultant.